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Finnegan v. Berryhill

United States District Court, E.D. New York

October 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          For the Plaintiff PHILIP HOWARD SEELIG Seelig Law Office, LLC

          For the Defendant JOSEPH A. MARUTOLLO BRIDGET M. ROHDE U.S. Attorney's Office, EDNY



         Eugene Finnegan (“Finnegan”) seeks review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability benefits under Title II of the Social Security Act. Both parties move for judgment on the pleadings. For the reasons below, Finnegan's motion is granted and the Commissioner's motion is denied. The case is remanded for calculation of benefits.


         Finnegan suffers from asthma, knee, and back problems, including lumbar disc displacement, a chronic ACL tear, bilateral knee pain, and radiculopathy. He also has tinnitus and Gastroesophageal Reflux Disease (“GERD”). Many of his problems stem from his time in the Marine Corps and as a firefighter for the Fire Department of the City of New York (“FDNY”).

         Finnegan sees a bevy of specialists and doctors for his problems. He treats regularly with Dr. Mark Brandon, M.D., and Dr. Joseph Giovinazzo, M.D., for his knee issues, Dr. Ann Marie Stillwell for pain management, Dr. Frank Acerra, M.D., Dr. Michael Weiden, and Dr. Anne Duque, M.D., for his asthma, and Dr. Diane Kaplinsky, M.D., for his primary care. He has also seen Dr. Allan B. Perel, M.D. for his back pain, Dr. Ludmila Feldman, M.D. for his back and hip pain, Dr. Isabella Feldman, M.D., for his back and hip pain, Dr. Tamara Saukin, M.D., for his knee issues, and Dr. Mark Carney, M.D. for tinnitus. Finally, on one occasion, he had a consultation with Dr. Vinod Thukral, M.D., the Commissioner's consultative examiner.

         Finnegan suffers from four to eight asthma attacks a week, lasting an average of an hour, though his worst asthma attacks can last up to an entire day. He has never been hospitalized for his asthma.

         Finnegan requires knee braces for his chronically torn ligaments but still has instability and difficulty kneeling, squatting, and walking. He has had one unsuccessful ACL surgery. His knee doctors have recommended he undergo additional surgery. He has declined to do so because of concerns of being unable to help care for his children and the recommendation of Dr. Stilwell, who believes “with his severe asthma, these surgeries would be high risk anesthetically, and therefore, I cannot advise surgery.” AR 806.[1]

         Finnegan's treating physicians are almost unanimous in their opinion that he is totally disabled by his combination of issues. Dr. Stillwell opined that Finnegan was limited to less than one hour standing and four hours sitting in an eight hour work day, required bed rest during the work day, would be off task more than 10% of the day, and would require an average of 3 or more sick days per month. She based her opinion on his persistent back and knee pain and “permanently injured” lungs, as well as the failure of physical therapy, pain medication, and cortisone injections to treat his issues. Dr. Giovinazzo found the same material limitations.

         Dr. Acerra stated that Finnegan would be unable to work because of his need to avoid irritants that exasperate his asthma and concurred that Finnegan would need at least 3 sick days per month. Drs. Weiden and Duque, who treated Finnegan when he was still with the FDNY, indicated that he was incapable of even low stress jobs due to his respiratory conditions and agreed that he needed at least 3 sick days per month. The one dissenter among Finnegan's treating physicians, Dr. Brandon, believes that Finnegan did not qualify for SSI “simply because of an ACL rupture” and reserved judgment until after Finnegan completed a second surgery (though he formed this opinion before Dr. Stilwell voiced her concerns about the “high risk” of anaesthesia due to Finnegan's asthma). As a knee specialist, he did not opine on the impact of Finnegan's overall combination of symptoms and based his determination solely on Finnegan's ruptured ACL. Dr. Thukral, the consultative examiner, diagnosed Finnegan with the same problems as the treating physicians but disagreed on the severity of the symptoms, finding they were not disabling. However, his assessment was based on a single consultation, and he was not a specialist in any of the areas in which Finnegan faced problems.


         Finnegan filed his application for disability benefits on February 4, 2013, alleging a disability onset date of December 29, 2012. His application was denied. He sought a hearing with an ALJ, which was held on November 20, 2014.

         The ALJ denied Finnegan's application in a decision dated February 23, 2015. Applying the familiar five-step evaluation process[2], the ALJ first determined that Finnegan had not engaged in substantial gainful employment between his alleged onset date and his date last insured (December 31, 2016). Second, the ALJ found that Finnegan suffered the following severe impairments: degenerative disc disease, degenerative joint disease in the bilateral knees, recurrent torn ACLs in the bilateral knees, and asthma. Third, the ALJ determined Finnegan's impairments did not meet the requirements of a listed impairment. Fourth, the ALJ found the Finnegan had the residual functional capacity (“RFC”) to perform sedentary work, with the following restrictions:

[Finnegan] can never climb ramps or stairs . . . . He can never climb ladders, ropes, or scaffolds. He can occasionally balance or stoop. He can never kneel, crouch, or crawl. He must avoid concentrated exposure to extreme temperatures, wetness, and humidity. He must avoid even moderate exposure to respiratory irritants ...

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